Attorneys Are Important in Bankruptcy
There are lots of reasons to have an attorney represent you in bankruptcy, or any court for that matter, regardless of which side you are on. But what a lot of Pro Se (people representing themselves without an attorney) individuals don’t understand is that all the rules governing procedure and evidence and the laws apply to them, whether they know them or not.
Beware of Bankruptcy Rule 9011
There is a rule in federal courts that at its core I’m sure was designed to "keep attorneys honest." It gives a strong punishment to attorneys who file frivolous pleadings with the court or make arguments that aren’t supported by the law.
Federal Rule of Civil Procedure 11 was incorporated into the Federal Rules of Bankruptcy Procedure in section 9011, and provides that:
"By presenting to the court (whether by signing, filing, submitting, or later advocating) a petition, pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information and believe, formed after a reasonable inquiry reasonable under the circumstances,—
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2)the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3)the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; AND
(4)the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief."
Sanctions may be awarded by the court (after a properly noticed motion has been filed) for violating any of the above provisions.
The Rules Apply to Non-Attorneys Too
Those of you paying attention already noticed that this Rule
does not just apply to attorneys. It applies to anyone representing themselves in a bankruptcy case, whether they be a debtor or a creditor.
Bankruptcy laws are very complex and to a non-attorney (and even to many attorneys) can be very confusing. Emotions can fly high and the temptation may be to make a claim or take a position just because something doesn’t seem fair to you, even if the position you are taking is not supported by existing law (or a nonfrivolous argument to change the law).
While it is true that Judges may give more slack to an unrepresented party than to one represented by an attorney, I have seen non-attorneys get sanctioned for violating the above rule.
So beware: If you decide to represent yourself in a bankruptcy-related proceeding, you will be held to these standards for every document you sign and file with the court, and every statement you make to the court.
Mark Markus has been practicing exclusively bankruptcy law in California since 1991. He is a Certified Specialist in Bankruptcy Law by the State Bar of California Board of Legal Specialization, AV-Rated by martindale.com, and A+ rated by the Better Business Bureau. His webpage is
Individuals representing themselves without an attorney in a bankruptcy case are subject to the same rules and regulations as attorneys. Ignorance of the law will not prevent sanctions from being issued. Bankruptcy Rule 9011 allows the court to sanction anyone that appears or files a document with the court if this rule is not followed.